REGIONAL—An administrative law judge is expected to decide by early May whether the Department of Natural Resources legitimately suspended Lynn Rogers research permit last July. Regardless of her decision, however, the future of Rogers decades-long study of wild black bears remains clouded.
In the DNR, Rogers faces a powerful state agency that has shown a willingness to expend considerable resources to end his work. But even if Rogers were successful in his lawsuit challenging the DNR’s decision to deny him the right to radio-collar bears in Eagles Nest Township, he faces a perhaps more intractable, and less publicly accountable foe, in what appears to be a small group of hunters who have targeted Rogers’ research animals for killing.
Rogers and his research associate Sue Mansfield are hesitant to talk at length about the situation due to the current legal case against the DNR, but say they have evidence that their bears were specifically targeted by a small group of hunters, and that at least some DNR officials may have been involved in assisting them. “The DNR definitely knew about the targeting of June,” said Mansfield.
Rogers says he believes the vast majority of hunters would never target a research animal, but he acknowledges that his push to pass a legal prohibition on the taking of study animals angered some bear hunters. And Rogers’ high profile in the news media has, inevitably, attracted the attention of some who don’t share his philosophy towards bears.
And this year, some of those critics made their presence known, as hunters killed fully 30 percent of Rogers’ study animals this past season. That’s far above the long-term average of 5.5 percent in any given hunting season. While it’s a small sample size (his current research permit allowed him to collar no more than ten bears), neither Rogers nor Mansfield believe it’s a coincidence.
Indeed, said Mansfield, the hunters appear to have specifically targeted a bear that she and Rogers dubbed “June,” who was the study’s most valuable animal, because she allowed Mansfield and Rogers to walk with her and her offspring for nearly a decade. “I started walking with June in 2004,” recalls Mansfield, who said she’s felt the loss personally, as well as professionally. “Losing June put a huge hole in the data set we were collecting. We were concentrating on her and her family, the mother/daughter relations and how their territories shift over time,” said Mansfield.
June was a local matriarch, said Mansfield, who dominated a large range at the heart of the study’s territory. She was also grandmother to Hope, a young bear that generated tremendous publicity for Rogers’ work when one of his den cams broadcast her birth live on the Internet.
Since Rogers and Mansfield are studying bear family dynamics, the loss of June was damaging and has forced the research duo to pursue new lines of inquiry.
So even as Rogers and Mansfield fight to reverse the DNR’s permit revocation, they face continued threats to their research even if they emerge successful in their current legal battle.
“I worry that we’re near the end of the research, one way or another,” said Rogers.
Mansfield was circumspect, and said she’s just waiting to see what the judge decides. “I’m not ready to give up the ghost just yet,” she said. “There are still things we can learn.” Still, said Mansfield, the study has developed a huge amount of information over the years. “Some of our data sets are probably close to sufficient,” she said.
The recent actions by hunters could well dissuade Rogers and Mansfield from pursuing a different approach, one that would likely prompt a renewed confrontation with the DNR. It turns out, lawyers disagree on whether the DNR actually has authority to prevent someone from placing a radio-collar on a bear, particularly if doing so does not require anesthetizing the animal. Lawyers, from the attorney generals office, who are representing the DNR in the Rogers case, have argued that Rogers’ actions toward his study bears constitutes the taking or possessing of the animals, which requires a DNR-issued permit. But Rogers and his attorneys have argued that Rogers is not “taking or possessing bears,” since his study animals are not killed or restrained, and remain free in every way. Indeed, Rogers and his attorneys argued as much in a motion for directed verdict they filed in early March, just ahead of the evidentiary hearings last week.
Chief administrative law judge Tammy Pust, who is handling the Rogers case, ruled last month that Rogers is not “taking” bears through his study, but she deferred a decision on whether his actions constitute “possession,” which would still require a permit.
DNR attorneys have argued that Rogers has effective control over the bears because he feeds them, which alters their behavior, and, in effect gives him what is called “constructive possession.” As evidence, the agency points to a video submitted by a bear hunter, who had been an invited guest at Rogers’ Wildlife Research Institute. In it, another bear hunter coaxed a bear to “dance” by holding food over a bear’s head and moving it from side to side. Rogers says he was not present at the time, had no control over the actions of the hunter, and knew nothing about the video until the DNR offered it as evidence.
While the state of Minnesota has little case law to guide Pust’s decision, Rogers’ attorneys have cited court decisions from other states, including a California case in which a judge denied a landowner’s claim against the state for damage to his property caused bya radio-collared tule elk. The landowner claimed that the state had effective control of the elk as a result of the radio-collaring, but the court found that radio-collaring by itself did not establish control.
In another California case, a court found that homeowners, who sought to prevent the city of Hollywood Park from culling a local deer herd, did not have a property interest in the local deer, even though they fed and cared for them, much as family pets.
Pust, in rejecting a later motion from Rogers, noted that California has a different legal definition of animal possession, which makes it less relevant to the current case.
In either case, Pust’s ultimate decision will ultimately rest on relatively subjective criteria, and will likely hinge on her overall assessment of Rogers’ involvement with his study bears. If, for example, Rogers does not exercise control simply by radio-collaring bears, does he do so through feeding them, or walking with them in addition to radio-collaring? Did he exercise control by reuniting Hope with her mother after she had abandoned the cub?
Regardless of Pust’s final ruling, the Department of Natural Resources maintains the final decision-making authority. Rogers maintains the right to appeal Pust’s decision to the Court of Appeals. The DNR does not.